ALJDEC decisions subject to certification as final

2014A-5037-ROC · Registrar of Contractors · 2016-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2015, at 10:00 a.m. APPEARANCES: Thomas Maurice Myers (“Complainant”) appeared on his own behalf; Pabst Builders LLC (“Respondent”) appeared through David Pabst (“Mr. Pabst”), its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On April 28, 2011, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-2.272696-R for general residential contracting to Respondent. 2. On December 12, 2014, Complainant filed a complaint against Respondent with the Registrar, alleging nine specific workmanship deficiencies in a remodeling project that Respondent performed at Complainant’s residence at 336 Horny Toad Rd., Flagstaff, Arizona 86001. According to the complaint, Complainant had paid Respondent $38,410.00 for the project pursuant to an oral contract. 3. After Respondent failed to resolve the complaint, the Registrar issued a Citation, which charged cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 4. Respondent filed a timely written answer to the Citation, denying that it was responsible for any deficiencies in the remodeling project. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 6. An evidentiary hearing was held on December 16, 2015, via videoconference from the Registrar’s Flagstaff office. Complainant testified on his own behalf and presented the testimony of his wife, Becky Myers (“Mrs. Myers”). Respondent presented the testimony of Mr. Pabst. The Registrar’s assigned Investigator, Steve Philpott (“Investigator Philpott”), also testified. Hearing Evidence 7. Respondent was the general contractor on the initial construction of Complainant’s residence, where Respondent later performed the remodeling project. 8. Investigator Philpott performed a jobsite inspection on January 6, 2015. On January 14, 2015, Investigator Philpott on behalf of the Registrar issued a Directive that required Respondent on or before January 29, 2015, at 5:00 p.m. to correct by appropriate means seven of the nine items in Complainant’s complaint, including Item 2, “Unfinished/Mismatched cabinets/vanity in bathroom.” 9. On or about March 4, 2015, Investigator Philpott performed a compliance inspection. Investigator Philpott opined that Respondent had appropriately corrected six of the seven items on the January 14, 2015 Directive. With respect to Item 2, Investigator Philpott’s compliance inspection report stated in relevant part: After the initial Jobsite visit, the Respondent removed all the doors, took them to his cabinetmaker in Phoenix and failed to return the doors and finish the cabinet work. Respondent has failed to take the corrective action necessary to remedy the poor and unfinished work regarding this item.

10. Complainant agreed that at the time of the hearing, only Item 2 remained at issue. 11. Investigator Philpott testified that Complainant and Mrs. Myers provided the drums for the bathroom cabinets. Investigator Philpott testified that Complainant paid Respondent for the doors and Respondent paid the manufacturer. Investigator Philpott opined that Respondent was responsible for the mismatched bathroom cabinet doors. 12. Mr. Pabst testified that Complainant and Mrs. Myers selected the finish for the bathroom cabinets and ordered the cabinet doors directly from the manufacturer, National Countertops & Cabinets (“National”) in Phoenix, which had manufactured the cabinets that Respondent installed during its initial construction of the residence. Mr. Pabst testified that Respondent did not provide the sample or place the order with National; the only thing he did was pick up and pay for the cabinet doors while he was in Phoenix for another job to accommodate Complainant. Mr. Pabst testified that the only thing that Respondent was paid to do was to install the cabinet faces that Complainant and Mrs. Myers had selected and paid for. 13. Respondent called the Administrative Law Judge’s attention to a letter from Richard Bagby, the owner of National, dated February 19, 2015, which Respondent had attached to its written answer to the Citation, that stated in relevant part as follows: Approximately four years ago, [National] produced kitchen cabinets for the Myers residence. There were no issues associated with this transaction. The Myers were very satisfied with their new kitchen cabinets. Then three years after that transaction, the Myers became repeat customers when they once again called upon [National] to replace the vanity in their bathroom. Mr. Pabst became involved with this transaction when he volunteered to pick up the vanity for the Myers and deliver it to them as a personal courtesy. After the Myers received their new vanity, they discovered that there was an issue as they were not happy with the color of the vanity cabinet. It appears that they provided a sample color that was very difficult to match exactly due to the 3 year age discoloration that had been a normal response to the passing of time. This is of no fault of [National], nor of Mr. Pabst. Our company tries to match samples as best as possible without promise of an exact match that exceeds natural expectations.[1]

14. Complainant and Mrs. Myers denied that they had ordered the cabinet doors from National. Mrs. Myers testified that they only thing that she and her husband had done was to provide the measurements of the cabinets to National. Complainant pointed to a photograph that Investigator Philpott had taken at the March 4, 2015 compliance inspection which showed that someone had written “David P” on the drawer faces.[2] Complainant testified that it was insulting to suggest that he or his wife would have written the name to inculpate Respondent. 15. Mr. Pabst testified that Respondent cannot dictate National’s time frame. Once National fabricates the new matching cabinet faces, Mr. Pabst offered to pay another licensed contractor to install the faces at no cost to Complainant and Mrs. Myers. 16. Administrative notice is taken of the Registrar’s public website. According to the Registrar’s records, on December 10, 2015, Respondent’s license was current and in good standing. Between May 1, 2015, and June 17, 2015, Respondent’s license was suspended for non-renewal. 17. Investigator Philpott testified that in mid-June 2015, after he referred the matter to the Registrar’s Legal Department, Complainant contacted him to ask if Respondent was still allowed to correct the mismatched cabinets. Investigator Philpott informed Complainant that because Respondent’s license was administratively suspended, it could not perform contracting work, including repairing work that it had previously performed. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[7] 4. Arizona contracting law requires licensed contractors to memorialize in writing any agreement to perform construction at a cost of more than $1,000.00.[8] If Respondent had complied with this law, the parties’ written contract would have resolved the parties’ dispute about who was responsible for selecting and providing the cabinet faces. Although Respondent submitted Mr. Bagby’s letter, no one submitted National’s purchase order, which presumably would have shown who selected and placed the order for the cabinet faces.[9] 5. Complainants still bear the burden to establish Respondent’s contracting law violation in this matter. In light of Mr. Bagby’s February 19, 2015 letter on behalf of National, Complainant has not established that it is more likely than not that Respondent selected or was responsible for the selection of the cabinet faces. Therefore, Complainant has not borne his burden to establish cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[10] namely A.A.C. R4-9-108,[11] or A.R.S. § 32-1154(A)(22).[12] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, Case No. 2014-5037 against Pabst Builders LLC’s License No. B-2.272696-R shall be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, January 4, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Insp Correspondence From Respondent2.pdf [2] See 5th photograph date-stamped 3/4/2015 13:10 at Insp Action Letters2.pdf. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] See A.R.S. § 32-1158. A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007, must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . .

[9] The Administrative Law Judge notes that on December 21, 2015, the Office of Administrative Hearings received a subpoena duces tecum to Mr. Bagby and National for proof of payment and all communications with Complainant and Mrs. Myers, which they apparently submitted to the Registrar. The Administrative Law Judge did not have an opportunity to sign the subpoena before the December 16, 2015 hearing. [10] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [11] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [12] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826